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Schuster v. Schuster

Decided: June 30, 1950.

ETHEL C. SCHUSTER, PLAINTIFF-RESPONDENT,
v.
BERNARD R. SCHUSTER, DEFENDANT-APPELLANT



On appeal from Superior Court, Chancery Division.

Colie, Jayne and Eastwood. The opinion of the court was delivered by Colie, J.

Colie

This is the defendant's appeal from a judgment of the Superior Court, Chancery Division, that he "pay to the plaintiff the sum of Twenty Dollars ($20) a week for her support and that of Bernard Robert Schuster, Jr., infant child of the marriage."

The cause is before this court upon an agreed statement in lieu of record which discloses that the plaintiff wife filed a petition for divorce upon the ground of extreme cruelty on September 11, 1947. Personal service was effected upon the defendant at his home in New Jersey. Paragraph 10 prays for a dissolution of the marriage, custody of their child and concludes "Petitioner prays that defendant may be decreed to support petitioner and said child of said marriage and that she may have such further relief as may be just." On May 26, 1948, the court permitted defendant to file an answer and counterclaim. This pleading does not appear in the appendix. As of July 15, 1948, the cause had progressed to the entry of an order for pendente lite support of the child. The next significant fact is the issuance of an order to show cause on January 24, 1949, "why the plaintiff should not be granted leave to file an amended complaint," providing for service thereof "upon the defendant's solicitor of record * * * (in) Newark." On March 18, 1949, the court granted plaintiff leave to file an amended complaint, and defendant ten

days to plead thereto. The amended complaint demanded judgment "Compelling the defendant to support her and the infant child of the marriage; compelling the defendant to give reasonable security for such maintenance and to pay the same from time to time under the compulsory order of this Court, as provided by statute; directing the payment of her counsel fees and costs," and a direction that defendant file an answer. Defendant countered with a motion under Rule 3:12-2 to strike the first cause of action in the amended complaint, i.e. , for support and maintenance upon three grounds (1) lack of jurisdiction over the person, (2) insufficiency of process and (3) "insufficiency of service of process, by reason of the fact that said cause of action is wholly new, is transitory and personal in nature and was instituted after the defendant became a resident of Florida without service of summons or other process upon him." After argument the court denied the motion and defendant then filed an answer to the second cause of action pleaded in the amended complaint, i.e. , for divorce on the ground of extreme cruelty. Thereafter, defendant submitted interrogatories, some were answered voluntarily, others under court direction to do so. The agreed statement in lieu of record discloses what transpired. We quote:

"11. On June 20, 1949, this cause was tried for an entire day before Advisory Master Tomasulo and the plaintiff sought to prove extreme cruelty on the part of the defendant but failed to complete her case before adjournment. The testimony of the plaintiff and her witnesses on that day was relevant to both counts of the amended complaint. Counsel for the defendant cross-examined all witnesses who testified. Counsel for the defendant objected to every bit of testimony he considered to be relevant only to the first count and all such objections were overruled. Counsel for the defendant did not cross-examine on testimony he objected to. The defendant was present in court, having been brought from Florida, but had no opportunity to testify. Upon adjournment, it was indicated by the court that the next trial date would be sometime in August.

"12. On the following day, after the defendant had departed for Florida, his counsel consented to the plaintiff presenting further proofs on June 28, 1949, with the understanding that the defendant could not complete his case on that day since he was without funds to

return. Plaintiff's counsel did not, however, proceed with testimony in furtherance of the second count of the amended complaint but opened by moving the dismissal of said count and presented a prepared order to the court, which was signed. The defendant's counsel was excused by the court after stating that he was present to defend only the second count. * * *"

The defendant subsequent to service upon him of the original petition for divorce moved to Florida and there established a bona fide residence, and he was a resident of Florida when the order to show cause was issued on January 24, 1949, and at all times thereafter.

The New Jersey court had jurisdiction over the person of the defendant by reason of personal service upon him of the original divorce proceeding. The court below entered judgment against the defendant in the maintenance action upon the belief that Chapter 320, Laws of 1948, amending R.S. 2:50-20 coupled with Rule 3:84-4 conferred jurisdiction upon the New Jersey court to enter the judgment under review. R.S. 2:50-20, as amended reads:

"Proceedings in any suit commenced under this chapter shall not be set aside, annulled or made void for any defect in matter of form or for any mistake or omission not affecting the real merits of the cause, and the court may permit either party to amend his proceedings in the cause, either in matters of form or substance, including amendments to set forth a cause of action which has arisen or become known since the filing of the original complaint or to change the ...


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